Citation Nr: 1521164
Decision Date: 05/18/15 Archive Date: 05/26/15
DOCKET NO. 13-21 621A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUE
Whether there was clear and unmistakable error (CUE) in the July 18, 1977, decision of the Board of Veterans' Appeals (Board) denying entitlement to service connection for a detached retina of the right eye.
REPRESENTATION
Appellant represented by: Peter Sebekos, Attorney
ATTORNEY FOR THE BOARD
J. Fussell
INTRODUCTION
The moving party served on active duty from June 1972 to June 1975.
This matter is before the Board as an original action on a motion made in August 2013.
Historically, a July 1977 Board decision denied service connection for a detached retina. Applications to reopen that claim were subsequently denied, as recently a December 2003. Upon receiving another application to reopen, which was also denied, the Veteran appealed that decision to the Board, which in April 2011 found that new and material evidence had been submitted to reopen that claim and, prior to de novo adjudication of the merits, remanded the case to the RO. Following a favorable medical opinion obtained on VA examination in August 2011, the RO in a December 2011 rating action granted service connection for a detached retina of the right eye.
The April 2011 Board decision noted that at the June 2010 Board hearing, the Veteran's attorney indicated that he was considering filing a motion for reconsideration of the July 1977 Board decision or a motion to revise that decision based on CUE but that the record did not reflect the Veteran or his representative has submitted a motion in accordance with either of these sections. Hence, neither a motion for reconsideration nor a CUE motion of the July 1977 Board decision were then before the Board.
Subsequently, in August 2013 the motion for revision of the 1977 Board decision on the basis of alleged CUE was received.
FINDINGS OF FACT
1. In July 1997, the Board denied entitlement to service connection for a detached retina of the right eye.
2. Any failure by VA to assist the moving party, including any putative failure to provide assistance in gathering or obtaining evidence, does not constitute CUE pursuant to the applicable regulation.
3. There was no outcome determinative failure to properly apply governing law and regulations to the correct facts at the time of the July 18, 1977 Board decision.
CONCLUSION OF LAW
The July 18, 1997, Board decision that denied entitlement to service connection for a detached retina of the right eye did not contain CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400 - 20.1411 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c).
Under 38 U.S.C.A. § 7111, the Board has been granted the authority to revise a prior decision of the Board on the grounds of CUE. A motion requesting review under this statute may be filed at any time after the underlying decision is made. 38 C.F.R. § 20.1404(c). In this case, the moving party's representative filed a motion for revision of the July 1997 Board decision in August 2013.
A decision by the Board is subject to revision on the grounds of CUE. If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 7111(a). A motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative. 38 C.F.R. § 20.1404(a). The motion must include the name of the veteran; the name of the moving party, if other than the veteran; the applicable Department of Veterans Affairs (VA) file number; and, the date of the Board decision to which the motion relates. Id. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Id.
In this case, the August 2013 CUE motion contains all of the relevant information. Consequently, the Board finds that the moving party met the threshold pleading requirements of 38 C.F.R. § 20.1404(a). As shown in the discussion below, the Board also finds that the moving party's representative set forth his allegations with sufficient specificity in the August 2013 CUE motion. 38 C.F.R. § 1404(b). The Board will therefore address the CUE motion on the merits.
The provisions of 38 C.F.R. § 20.1403(a) define CUE as a very specific and rare kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, a finding of CUE requires either that the correct facts, as they were known at the time, were not before the Board, or that the statutory and regulatory provisions extant at the time were incorrectly applied. Id. To be CUE an error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Russell v. Principi, 3 Vet. App. 310, 313-14, 320 (1992) (en banc); see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra).
The evidence to be reviewed for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b). For a Board decision issued on or after July 21, 1992, the record to be reviewed includes relevant documents possessed by VA not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record. Id. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403(c).
As a failure to fulfill the duty to assist cannot be the basis of a finding of CUE in a Board decision, any such contention must be rejected as a matter of law. See 38 C.F.R. § 20.1403(d)(2) (one example of a situation that is not CUE is "Duty to Assist. The Secretary's failure to fulfill the duty to assist").
To the extent that the moving party alleges that the Board's discussion was insufficiently thorough or that a different result was warranted under the facts at the time, this will be discussed more thoroughly below but any such broad-brushed contention is a disagreement as to how the facts were weighed or evaluated, and this too is specifically precluded as a basis for a finding of CUE in a Board decision under the applicable regulation. See 38 C.F.R. § 20.1403(d)(3).
It is asserted that the Board both incorrectly found that decreased vision in the right eye at service entrance was due to a pre-existing refractive error, amblyopia, which was not aggravated by superimposed injury or disease, and it should have found that it was due to a retinal or macular hole in the right eye, which is not a refractive error. See 38 C.F.R. § 3.303(c) (refractive errors of the eye, as such, are not diseases or injuries within the meaning of applicable legislation). Further, if the Board had correctly made such a factual finding it should then have addressed the presumption of soundness and the question of aggravation.
In the July 1977 Board decision it was stated, in pertinent part, that the evidence was as follows:
The entrance examination reported vision of 20/400 in the right eye and 20/20 in the left eye. Amblyopia since birth was reported - vision not aided by corrective lenses. In June, at Fort Knox, Kentucky, (year not specified), he was seen in the optometry clinic. Testing revealed naked vision of 20/200 in the right eye and 20/40 in the left eye. An ophthalmoscopy examination revealed a macular hole on the right. The service medical records are negative for trauma, injury or disease affecting the right eye. At separation, distant vision was reported as 20/200 in the right eye and 20/30 in the left eye - corrected vision was not shown. Near vision was 20/200 in the right eye and 20/20 in the left - corrected vision was not reported. At separation, the veteran reported that he had had no (physical problems) in the Army except for his bad right eye.
The veteran's application for disability compensation was received in July 1975. He reported treatment for an eye problem in 1975.
The veteran was hospitalized by the Administration in July 1975 for repair of a detached retina of the right eye. He reported a two-year history of decreased vision. A funduscopic examination revealed an infratemporal retinal detachment with macular detached and either a macular hole or macular cyst. An examination of the left eye was essentially negative.
The followup hospital outpatient treatment records are on file. In July 1975, right eye vision was 20/400.
He was examined by the Administration in July 1976. Complaints were of blurred vision commencing late in 1972. Clinically, the central part of the right retina was dark and scarred. The diagnoses furnished were amblyopia and detached retina on the right.
In analyzing the evidence, the Board in 1977 stated that:
Initially, it is noted that the veteran had amblyopia and decreased visual acuity upon entry into service. And, there was no sudden or dramatic loss of vision reported or found during service. The service treatment records are negative for trauma, injury or disease to the right eye as a result of military service. Specifically, a detached retina was neither reported nor found during service or at separation. The detached retina, found one month after separation from service, is not shown by the evidence to be related to service.
There is no indication of any eye defect or any increase in the basic underlying condition during active duty and there is no evidence of eye damage as a result of exposure to cleaning fluid fumes. We now turn to the veteran's contentions that the eye cysts, developing in service, caused the detached retina. Based on sound medical principles, the cysts developed after the retina became detached, not the reverse thereof as claimed by the appellant. It is the opinion of the Board that the veteran's detached retina is unrelated to his military service by incurrence or aggravation.
The Board made the following Findings of Fact:
1. Upon entry into service, he had amblyopia with bilateral defective vision.
2. There was no gross change in his visual acuity between entry into service and separation.
3. There is no record of trauma, injury, or disease to the right eye during service.
4. A detached retina was not reported or found in service, or at separation.
5. The earliest evidence of a detached retina was in July 1975, one month after separation and is not related to military service.
The Board then made the following Conclusion of Law:
The veteran's detached retina on the right was not incurred in or aggravated by service. (38 U.S.C. 310, 331).
As noted in the April 2011 Board decision, at the June 2010 Board hearing the Veteran testified that his eyesight worsened while in service. He also testified that he was slammed into the ground by his instructor, to avoid being hit by grenade shrapnel. The Veteran also testified that he was hit by pugil sticks during combat training and was also hit on the head by a drill sergeant. He also alleged that he was exposed to chemicals during service.
However, the Board found in 1977 that there was no evidence of a physical injury of the right eye during service. This testimony was rendered after the 1977 Board decision and, as such, was not evidence then of record. Also, in 1977 the Board found that there was no evidence of exposure to chemicals or fumes from chemicals. Similarly, the medical articles and information submitted at that hearing were not on file at the time of the 1977 Board decision, nor was the recent favorable VA medical opinion rendered in August 2011.
Thus, although the Veteran's testimony at the June 2010 hearing and the textual evidence were new because they were not previously of record and were material for the purpose of reopening the claim, they may not be considered in the context of a motion for revision based on CUE.
CUE MOTION
In the August 2013 motion for revision of the July 1977 Board decision on the basis of CUE, there were repeated citations to and copies of military regulations, particularly those governing a servicemember's fitness. There were also citations to varied medical sources, including Dorland's Illustrated Medical Dictionary, 29th Edition (W.B. Saunders 2000) and to medical sources found on the Internet. There were also citations to and copies of VA regulations.
It is asserted that there was error in the Board's 1977 finding that the Veteran had bilateral defective vision at service entrance, when the entrance examination found that vision in the left eye was 20/20. However, even if erroneous it is not explained how this would be outcome determinative with respect to the claim for service connection for the right eye, when he did have defective vision in that eye upon service entrance.
In essence, the primary argument in the CUE motion is that the Board in 1977 did not specifically address the presumption of soundness and whether an in-service increase was due to the natural progress of disease or injury. In support of this it is argued that the enlistment finding of right eye amblyopia was proven incorrect three days later when an optometrist reported a macular hole in the right eye.
The Board notes that amblyopia is impairment of vision without detectable organic lesion of the eye. Satterfield v. Nicholson, No. 03-1504, slip op. (U.S. Vet. App. December 8, 2005). "Amblyopia' means impairment of vision without a detectable organic lesion of the eye. DORLAND'S at 53." Duvall v. Shinseki, No. 06-3311, slip op. at 2, footnote 8 (U.S. Vet. App. May 3, 2011) (nonprecedential memorandum decision). The moving party's attorney states "(A diagnosis of amblyopia, impaired vision without detectable organic lesion, [sic] is inconsistent with a macular hole, which is defined as a lesion on the macula lutea of the retina.)." From this, it is argued that the Board in 1977 erred in finding that the Veteran had amblyopia upon service entry and tainted the 1977 Board analysis. However, the implicit citation to medical literature is simply insufficient to establish that any error was CUE.
Similarly, an objection is made to the language in the 1977 decision as to the Board's use of "sound medical principles." Specifically, it is argued that a review of medical literature relating to retinal hole shows that in July 1977 the medical community recognized that macular cysts were precursors of retinal detachment, rather than the reverse as posited by the Board in 1977. The CUE motion then goes to extensive lengths citing and quoting extensively from medical sources as early as 1924 and then purporting to trace the progress of the state of ophthalmological knowledge, citing to sources in 1966 and 1975. However, no information from any of these sources was before the Board in 1977. Thus, while the Board appreciates that extensive medical research which the moving party's attorney has conducted, which was not on file in 1977, this information and the allegations in the CUE motion simply fail to establish that the Board's reliance in 1977 upon "sound medical" principles was CUE.
As to this, in 1991 the United States Court of Appeals for Veterans Claims (Court) held in Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991) (decided March 8, 1991) for the first time that the Board must only consider independent medical evidence to support its findings and not provide its own medical judgment in the guise of a Board opinion. Colvin, 1 Vet. App. at 172. However, prior to Colvin, it was permissible for VA, the RO and the Board, to use medical judgment and not just independent medical evidence in adjudications. "The [Board's] use of its own medical judgment provided by the medical member of the panel was common practice prior to the Colvin decision.... It was not until this Court denounced such a practice that the [Board] was required to rely upon independent medical evidence to support its medical conclusion." Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995). "[O]pinions from this Court that formulate new interpretations of the law subsequent to an RO [or Board] decision cannot be the basis of a valid CUE claim." Berger v. Brown, 10 Vet. App. 166, 170 (1997).
It is further argued that in 1977 the facts were unambiguous and proved that the amblyopia found on the entrance examination was incorrect and that, in fact, the Veteran had a retinal or macular hole which was the cause of his defective vision at service entrance.
However, this ignores the unrefuted fact that the July 1976 VA examination specifically diagnosed the Veteran as having both amblyopia of the right eye and a detached retina of the right eye. This refutes the allegation in the CUE motion that the correct facts in 1977 were that the Veteran did not have diminished visual acuity at service entrance due to amblyopia but, rather, that such decreased vision was due solely to an organic lesion, i.e. a macula hole, as a lesion on the macula lutea of the retina. See page 16 of the CUE motion.
Given the foregoing, even assuming that another analytic approach, such as that suggested in the CUE motion, was undertaken by the Board in 1977 it is not indisputable that there would have been a different outcome based upon the evidence on file in 1977 (and irrespective of the multiple medical sources recently cited in the 2013 CUE motion). For example, in the CUE motion, at page 17, it was speculated (citing the numerous military regulations as to fitness) that if the Veteran had been properly followed-up during service he would have been given a Medical Board and discharged from service in July or August 1972.
However, what might or what might not have occurred can only remain a matter of speculation. In fact, this is true as to the CUE motion's speculation that the enlistment examiner lacked equipment or training to allow him to then diagnosis a macular hole and, likewise, that the examiner at separation lacked the tools or expertise to diagnosis the existence of a detached retina. See page 20 of the CUE motion.
While arguing that the Board's analytic approach was incorrect and asserting that the Board either ignored or did not appreciate the significance of certain facts of record in 1977, resulting in a failure to apply the governing law and regulations to the correct facts, the argument is at bottom a disagreement with how the Board in 1977 weighed the evidence then of record, i.e., in finding that decreased right eye visual acuity at service entrance was due to a refractive error rather than a lesion or hole of the macula or retina. In other words, it was not CUE for the Board to find that the decreased vision in the right eye at service entrance was due to a refractive error, particularly because amblyopia since birth was noted at service entrance and both distant and near right eye vision were actually better at service discharge, at 20/200, than at service entrance when vision was 20/400 in the right eye, as opposed to concluding that a macular hole in the right eye existed at service entrance and was precursor of a detached retina.
The Board acknowledges that it did not, in 1977, use an analytic approach which only gradually evolved from case law many years later. See generally Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). However, this does not automatically or necessarily mean that any Board decision prior to judicial review, as in this case, must necessarily be the product of CUE. The Board is unaware of any case law mandating such a conclusion and the moving party's attorney has not cited to any such case law.
However, to be CUE it is not sufficient that the correct law and regulations were either not applied or misapplied. To be CUE an error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Russell v. Principi, 3 Vet. App. 310, 313-14, 320 (1992) (en banc); see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell, supra); see also Dewberry v. McDonald, No. 13-3171, slip op. (U.S. Vet. App. Aug. 13, 2014) (addressing alleged CUE in not applying or misapplying the presumptions of soundness and aggravation).
Even assuming that the proper law and regulations were not applied or were misapplied, and even assuming that such a failure did not rebut the presumption of soundness or if rebutted that there was no permanent inservice increase, i.e., aggravation, it is still not absolutely clear that a different result would have ensued.
Having reviewed the evidence then of record the Board finds that the evidence in 1977 did not undebatably establish the existence of a detached retina of the right eye at service entrance or during service, and the evidence in 1977 did not undebatably establish that a macular hole in the right eye was the cause of the detached retina of the right eye which was first shown after service, particularly in light of the absence of evidence of some inservice cause, e.g., trauma, which would have led to such a detached retina.
For the reasons discussed above, the Board finds that there was no CUE in the 1977 Board decision denying service connection for a detached retinal of the right eye.
For the foregoing reasons, none of the moving party's contentions establish that there CUE in the Board's July 1977 decision, and the moving party's CUE motion must therefore be denied. The benefit of the doubt rule is not for application. 38 C.F.R. § 20.1411(a).
ORDER
The motion alleging CUE in the July 18, 1977, decision of the Board denying entitlement to service connection for a detached retina of the right eye is denied.
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L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs